WELLS FARGO BANK NATIONAL ASSOCIATION v. BEGUM (2026)

DECISION & ORDER

In an action, inter alia, to foreclose a mortgage, the defendant Resma Begum appeals from a judgment of foreclosure and sale of the Supreme Court, Queens County (Scott Dunn, J.), entered May 29, 2024.  The judgment of foreclosure and sale, insofar as appealed from, upon an order of the same court (Thomas D. Raffaele, J.) entered December 6, 2018, among other things, granting that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against the defendant Resma Begum, and upon an order of the same court (Scott Dunn, J.) entered April 3, 2024, inter alia, granting those branches of the plaintiff's motion which were to confirm a referee's report and for a judgment of foreclosure and sale, confirmed the referee's report and directed the sale of the subject property.

ORDERED that the judgment of foreclosure and sale is affirmed insofar as appealed from, with costs.

In March 2007, Mohamed Adam Ali Mian (hereinafter the decedent) executed a note and mortgage encumbering certain real property located in Woodside.  The decedent allegedly defaulted on his obligations under the note in December 2009.  He died in November 2014.  The mortgage ultimately was assigned to the plaintiff in October 2016.

This mortgage foreclosure action was commenced in June 2015.  The defendant Resma Begum (hereinafter the appellant), who is the decedent's widow and the administrator of and heir to his estate, interposed an answer.

In December 2017, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the appellant.  The appellant opposed the motion and cross-moved to dismiss the complaint.  In an order entered December 6, 2018, the Supreme Court, among other things, granted that branch of the plaintiff's motion and referred the matter to a referee to compute the amount due on the note.

In a report dated January 23, 2019, the referee concluded that the amount due on the note was $1,440,895.67.  On March 9, 2022, the plaintiff moved, inter alia, to confirm the referee's report and for a judgment of foreclosure and sale.  On June 9, 2022, the appellant opposed the plaintiff's motion and cross-moved for certain relief.

In an order entered April 3, 2024, the Supreme Court, inter alia, granted those branches of the plaintiff's motion.  A judgment of foreclosure and sale was then entered on May 29, 2024.  This appeal ensued.

Here, the plaintiff established, prima facie, that its predecessor in interest had standing to commence this action by submitting, inter alia, an affidavit of an employee of the plaintiff's loan servicer, a document execution associate, which established, prima facie, that the plaintiff's predecessor in interest had possession of the note, endorsed in blank, at the time of commencement of the action (see Aurora Loan Servs., LLC v. Taylor, 25 NY3d 355, 361;  Bank of Am., N.A. v. Nicolosi, 200 AD3d 1018, 1022).  In opposition, the appellant failed to raise a triable issue of fact.

In support of the plaintiff's motion, among other things, for summary judgment on the complaint insofar as asserted against the appellant, the plaintiff submitted an affidavit of service in which the process server attested that he had served the appellant with, inter alia, the summons and complaint and an RPAPL 1303 notice in bold 14–point type, printed on colored paper, which color differed from that of the color of the summons and complaint, with the title printed in 20–point type.  The process server attested that the notice served complied with all the requirements of RPAPL 1303.  This affidavit of service was sufficient to establish, prima facie, that the plaintiff's predecessor in interest provided notice in compliance with RPAPL 1303 (see Tri–State III, LLC v. Litkowski, 239 AD3d 911, 914).  In opposition, the appellant failed to raise a triable issue of fact.

Further, the appellant, who was not a borrower, was not entitled to notice pursuant to RPAPL 1304 and could not raise that defense on the decedent's behalf (see HSBC Bank USA, N.A. v Congregation Khal Chasidei Skwera, Inc., 213 AD3d 814, 815;  U.S. Bank N.A. v. Lloyd–Lewis, 205 AD3d 838, 839).

Moreover, the appellant failed to timely object to the referee's report.  “CPLR 4403 requires a motion to reject a referee's report to be made within 15 days of the filing of the report, while 22 NYCRR 202.44(a) requires the defendant to move to confirm or reject the report within 30 days after notice of the filing of the report” (Deutsche Bank Natl. Trust Co. v Gopaul, 229 AD3d 443, 445;  see HSBC Bank USA, N.A. v. Sewell, 198 AD3d 953, 955).  Here, the referee's report was filed on March 9, 2022, when the plaintiff moved, inter alia, to confirm the referee's report.  The appellant did not raise any objections to the report until she made her cross-motion on June 9, 2022, more than 30 days later.  “Therefore, that branch of the [appellant's] cross-motion which was, in effect, to reject the referee's report was untimely” (Deutsche Bank Natl. Trust Co. v Gopaul, 229 AD3d at 445).

The appellant's contention that the document execution associate improperly relied upon unproduced business records is improperly raised for the first time on appeal (see U.S. Bank N.A. v. Moschetta, 216 AD3d 848, 849).

The appellant's remaining contention is without merit.

Accordingly, we affirm the judgment of foreclosure and sale insofar as appealed from.

BARROS, J.P., VOUTSINAS, GOLIA and HOM, JJ., concur.